P v. Caraballo (4th Dist., Div.3) PC 1170.126 Prohibition For Defendants "Armed with a Firearm" Includes Vicarious Liability Stated in PC 12022(a)(1)

Mr. Caraballo and a codefendant walked into a bank and stood around for about 15 minutes before leaving.  Outside, the codefendant saw some policemen (responding to a call of two suspicious guys in a bank) and took off running, ditching a gun in a dumpster.

A jury convicted Caraballo of commercial burglary and found true an enhancement pursuant to PC 12022(a), which states in pertinent part;

a person who is armed with a firearm . . . shall be punished by an additional and consecutive term of . . .  one year[.] This additional term shall apply to a person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.

 It was the early 2000s and Caraballo had two strikes, which meant he was sentenced to 25-life under the previous "two strikes and any felony" law.  Following the 2012 passage of Proposition 36, Caraballo petitioned for resentencing pursuant to PC 1170.126.  The trial court denied the petition, finding that Caraballo was not eligible under subsection (e)(2), via PC 667(e)(2)(C)(iii), which prohibits resentencing if "[d]uring the commission of the current offense, the defendant . . . was armed with a firearm."

Caraballo appealed, arguing that, as the phrase is meant in 667(e)(2)(C)(iii), he was not armed with a firearm.  The Fourth District affirms.

The opinion does a decent job of framing the issue of statutory interpretation.  The actual interpretation leaves a lot to be desired, regardless of your feelings on the outcome.  

The question is what was intended by the law makers when they passed the language, "was armed with a firearm".  The ordinary, conversational, meaning of that phrase is that the defendant was carrying a gun or had it nearby available for ready use.  But, PC 12022(a) expressly states that a principal to a crime is to receive the enhancement for being "armed with a firearm" even if they weren't personally armed as long as another principal was personally armed.  

With this, the opinion declares the phrase "armed with a firearm" ambiguous and begins to dig through Proposition 47 ballot materials.  Within the materials are statements assuring voters that release would be denied to defendants whose crimes “‘involved firearm possession’” or were “‘gun related’” felonies.  With these in hand, the opinion calls it day and holds that the 12022(a)(1) vicarious liability language applies to 667(e)(2)(C)(iii).  

The opinion attempts to make its holding convincing by using selective omission to create a specious sense that overwhelming authority supports its argument.  The major first omission is that 12022(a)(1) previously used the language in 667(e)(2)(C)(iii) "armed with a firearm", without the additional language expressly including vicarious liability.  This previous version was found by the California Supreme Court to only apply when a defendant was "personally armed with a firearm".  Walker, 18 Cal 3d 232.   The Walker court announced the general rule that before it would impose vicarious liability, it needed some clear legislative directive.  After Walker, the legislature amended 12022(a) to add the final sentence which clearly states its intent to impose vicarious liability.  If the lawmakers wanted section 667(e)(2)(C)(iii)'s arming exclusion to include vicarious liability, why didn't they just use the language of the amended 12022(a)(1)?  If the lawmakers instead chose language from the previous 12022(a), which everyone knew from Walker doesn't include vicarious liability, does that not evince an intent to exclude vicarious liability from section 667(e)(2)(C)(iii)'s disqualification?  The opinion states, with emphasis added, that 12022 "expressly includes vicarious liability", but that actually hurts their argument when section 667(e)(2)(C)(iii) doesn't.

The second important omission occurs when the panel focuses on 12022(a)(1) and fails to mention that other sections of the penal code include the words "armed with a firearm" and have been interpreted to require a defendant personally be armed.  PC 12022.3 enhances certain sex crimes  when the defendant is "armed with a firearm" and has been interpreted in P v. Renner (1994) 24 Cal App 4th, 258, to require personally arming.   PC 1203.06, regarding probation decisions, defines "armed with a firearm" to require personal arming.   

While this opinion may (not) have gotten the correct result, the paucity of meaningful analysis makes it terribly difficult to conclude which it is.